{ "id": 1594993, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gracie LEAL, Defendant-Appellant", "name_abbreviation": "State v. Leal", "decision_date": "1986-07-29", "docket_number": "No. 7945", "first_page": "506", "last_page": "510", "citations": [ { "type": "official", "cite": "104 N.M. 506" }, { "type": "parallel", "cite": "723 P.2d 977" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "89 N.M. 770", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867174 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0770-01" ] }, { "cite": "84 N.M. 151", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763165 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0151-01" ] }, { "cite": "87 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830850 ], "weight": 2, "year": 1975, "pin_cites": [ { "parenthetical": "where evidence must be buttressed by surmise and conjecture, rather than logical inference in order to support a conviction, conviction cannot stand" }, { "parenthetical": "where evidence must be buttressed by surmise and conjecture, rather than logical inference in order to support a conviction, conviction cannot stand" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0345-01" ] }, { "cite": "92 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557154 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0320-01" ] }, { "cite": "89 N.M. 737", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864880 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0737-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "92 N.M. 83", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557196 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0083-01" ] }, { "cite": "90 N.M. 614", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870795, 2867109 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0614-02", "/nm/90/0614-01" ] }, { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "103 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711384 ], "weight": 4, "pin_cites": [ { "parenthetical": "evidence did not show which occupant of defendant's car threw beer can which injured child" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0667-01" ] }, { "cite": "87 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832191 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0242-01" ] }, { "cite": "91 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571101 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0554-01" ] }, { "cite": "70 N.M. 176", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2849660 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0176-01" ] }, { "cite": "103 N.M. 299", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711397 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/103/0299-01" ] } ], "analysis": { "cardinality": 694, "char_count": 12082, "ocr_confidence": 0.809, "pagerank": { "raw": 1.5541618813580552e-07, "percentile": 0.67568649755256 }, "sha256": "75725ad8379ef305914604328154d71ba57ec649286259796d754400a9b43321", "simhash": "1:faadf1318a033edd", "word_count": 2001 }, "last_updated": "2023-07-14T22:33:25.530063+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, C.J., and BIVINS, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Gracie LEAL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMINZNER, Judge.\nConvicted by a jury of one count of child abuse resulting in death, in violation of NMSA 1978, Section 30-6-1(C)(2) (Repl. Pamp.1984), defendant appeals. This court reversed defendant\u2019s conviction, after assignment to the summary calendar, over the state\u2019s objection. See State v. Leal, Ct.App.No. 7945 (Filed August 21, 1984). Having granted certiorari, the supreme court reversed and remanded the case for reassignment to the limited calendar. See State v. Leal, 103 N.M. 299, 706 P.2d 510 (1985).\nOn appeal, defendant argues that: (1) defendant\u2019s conviction for permitting her child to be cruelly punished is not supported by substantial evidence, and (2) the trial court erred in not submitting defendant\u2019s' requested jury instructions defining \u201cnegligently\u201d and \u201cpermit.\u201d Having reviewed the briefs and record after assignment to the limited calendar, we again reverse. Because of our holding on the first issue, we do not reach the second. Background\nOn October 25, 1983, defendant was charged by criminal information with knowingly, intentionally, or negligently, and without justifiable cause, permitting her daughter, K.L., to be cruelly punished, as a result of which K.L. died on November 18, 1982. Defendant was charged with a violation Section 30-6-1(C)(2), which reads in pertinent part: \u201cAbuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be * * * tortured, cruelly confined or cruelly punished[.]\u201d Defendant did not testify at the trial nor did she call any witness to testify. She was convicted as charged.\nWilliam Young and Charles Fisher, the ambulance attendants who transported K.L. from the house to Lea Regional Hospital, testified for the state. Young testified that on November 14, 1982, he and his partner, Fisher, were called to the Leal house in Lovington. Upon arrival, Fisher entered the house and saw defendant sitting on the couch holding K.L. When Fisher asked what the matter was, defendant said that K.L. was not breathing. When he asked what had happened, defendant said that the baby had fallen from her crib. Fisher testified that there were other people present when the ambulance arrived, but he could not remember whether anyone else was inside the house. He did notice another child was in the room, but only when defendant asked whether she could take him with her in the ambulance. Young testified that when he entered the house, he saw defendant, her young son, and the baby in Fisher\u2019s arms. He was not asked whether anyone else was in the house. Fisher began cardiopulmonary resuscitation on the baby and continued it on the way to the hospital. At the hospital, several physicians worked to revive K.L., but on November 18, her heart stopped beating. She was thirteen months old.\nJoyce Williams, who lived next door to the Leals, testified to what she saw and heard on November 14, 1982. She stated that on that morning, she had been outside and heard the cries of a child and a woman. Approximately twenty to thirty minutes later, defendant came over to ask to use the phone. Williams overheard the defendant ask to speak to her husband. About three to five minutes later, defendant returned and asked Williams to call an ambulance. Williams testified that she did not know who was in the Leal house that morning, although she noticed that the Leals\u2019 car was not there. She did not hear any disturbance in the house other than crying.\nExaminations, X-rays, and an autopsy of K.L. revealed several injuries. There were two distinct, unrelated places of injury on the skull and facial bruises.\nDr. Beighley, the pathologist who conducted the autopsy, testified that the cause of death was trauma to the head, producing hemorrhaging in the brain and resulting in brain degeneration. Upon examination, he discovered a V-shaped indented fracture at the base of K.L.\u2019s skull. He also testified that it was most likely she had been struck by an object, and not that she had fallen and struck an object. Further, he stated that it was highly unlikely a fall would have caused such an injury.\nDr. Loube, who treated K.L. in the emergency room, testified that K.L. had bruises on her chin and forehead, as well as swelling at the base of the skull. He estimated that the bruises occurred within twelve to eighteen hours of the time she was admitted to the hospital.\nDr. Ward, a diagnostic radiologist, testified that he had examined X-rays of K.L.\u2019s skull and found three fractures radiating from the base of the skull and separation of the tissue which connects the skull bones. He also testified that this type of fracture was inconsistent with a fall; a fall would most likely produce one linear fracture.\nAlthough Dr. Groves, a neurosurgeon, testified that a fall from several feet could have caused the injuries, all medical experts agreed it was unlikely K.L.\u2019s injuries were the result of a fall. They said the injuries were probably the result of a blow or blows to the head.\nDetective Ron Black testified that he examined and photographed K.L.\u2019s bedroom on November 19, 1982, pursuant to a search warrant. The crib rails appeared to be securely fastened and withstood certain testing for signs of malfunction. The floor was a carpeted hardwood floor.\nWhether Defendant\u2019s Conviction was Supported by Substantial Evidence\nOrdinarily, there are two components to a crime: an intent or mental state plus an overt act. 22 C.J.S. Criminal Law \u00a7 37 (1961). See State v. Craig, 70 N.M. 176, 372 P.2d 128 (1962). Section 30-6-1(C)(2) does not differentiate between child abuse committed knowingly, intentionally or negligently. Punishment for the crime will be the same regardless of which mental state is present. This section has, therefore, been characterized as a strict liability statute, see State v. Fuentes, 91 N.M. 554, 577 P.2d 452 (Ct.App.1978); State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (Ct.App.1975), intended to protect children who are in need of greater protection than adults. The fact that we are not concerned with the level of criminal intent involved, however, does not alter the fact that defendant must have committed an unlawful act. Some act of commission or omission lies at the foundation of every crime. 22 C.J.S., supra; NMSA 1978, \u00a7 30-1-4 (Repl.Pamp.1984).\nSection 30-6-1(C)(2) prohibits two acts \u2014 causing or permitting child abuse. In using the term \u201ccause or permit,\u201d the legislature intended to provide flexibility. Since abuse will frequently occur in the privacy of the home, charging a defendant with \u201ccausing or permitting\u201d may enable the state to prosecute where it is not clear who actually inflicted the abuse, but the evidence shows beyond a reasonable doubt that the defendant either caused the abuse or permitted it to occur. Cf. State v. Lujan, 103 N.M. 667, 712 P.2d 13 (Ct.App.1985) (jury determined defendant\u2019s actions helped, encouraged or caused child abuse to be committed). This interpretation, like the mental state requirement, is consistent with the overriding purpose of protecting children. When no contrary legislative intent is indicated and the words are free from ambiguity, no other means of interpretation should be resorted to. Id. Thus, properly charged and proven, the statute covers the situation where it is not clear which individual actually inflicted the injury. Cf. id. (evidence did not show which occupant of defendant\u2019s car threw beer can which injured child).\nHowever, \u201ccause\u201d and \u201cpermit\u201d are distinct. One is active, the other passive. When the state chooses to charge under only one portion of the statute (that defendant \u201ccaused\u201d or defendant \u201cpermitted\u201d the abuse), the prosecution is limited to proving what it has charged. See State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971); State v. Armijo, 90 N.M. 614, 566 P.2d 1152 (Ct.App.1977). Cf. State v. Utter, 92 N.M. 83, 582 P.2d 1296 (Ct.App.1978) (the indictment alleged child abuse in six alternative ways). Here, defendant was charged with \u201cpermitting\u201d K.L. to be cruelly punished. The state must, therefore, prove that she permitted the abuse to take place, not that she \u201ccaused or permitted\u201d it.\nWe do not inquire whether the evidence in this case would support a conviction for \u201ccausing\u201d K.L. to be cruelly punished because our answer would not change the result. A defendant may not be convicted of a crime for which he was not charged or tried. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).\nAlmost all of the state\u2019s evidence went to disproving the theory that the injuries were caused by an accident. While this shows that the child was cruelly punished, the medical testimony does not connect defendant to the punishment, either actively or passively. See State v. Adams, 89 N.M. 737, 557 P.2d 586 (Ct.App.1976). The fact that an injury occurred is not sufficient to prove this defendant guilty. See State v. Coe, 92 N.M. 320, 587 P.2d 973 (Ct.App.1978) (the statute does not apply to ordinary situations where a child is injured but only to those where the parent performs an abusive act or permits one to be performed).\nNo evidence was presented as to the time the fatal injury occurred. Medical testimony established that the bruises on the child\u2019s face had occurred within twelve to eighteen hours of the time the child was admitted to the hospital and that the injury to the back of the head \u201calmost certainly\u201d happened later, but there is no evidence as to how much later or how long before the hospital admission. The only other testimony concerning time is the neighbor\u2019s statement that she heard \u201ca child\u201d crying inside the house twenty to thirty minutes before defendant asked to use the phone. Evidence also shows, however, that defendant\u2019s young son was at home that morning. Without evidence as to when the injury occurred, the jury was required to speculate who was or might have been with K.L. when she was injured. This is impermissible. See State v. Vigil, 87 N.M. 345, 533 P.2d 578 (1975) (where evidence must be buttressed by surmise and conjecture, rather than logical inference in order to support a conviction, conviction cannot stand).\nThe state argues that the proof of cruel punishment permits an inference that defendant negligently permitted it to happen because there is no evidence that defendant acted to prevent it. This argument must be rejected. The burden is not on defendant to prove she tried to prevent the punishment; the state has the burden of proving beyond a reasonable doubt that she permitted the punishment. State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972).\nIn addition, the state\u2019s argument equates the concept of negligence and the word \u201cpermit.\u201d On these facts, \u201cpermit\u201d refers to the proscribed act, the passive act of allowing the abuse to occur. \u201cNegligence\u201d refers to the standard against which the act must be evaluated in determining whether defendant is culpable.\nThe state did not prove defendant permitted the abuse to occur. There was no evidence that defendant was present when the child was injured, that she knew of a pattern of abuse, or had reason to suspect the child would be abused, and failed to act to prevent it. There is no proof of any act or omission by defendant. There is, therefore, no act or omission to measure against a standard of negligence.\nThere being no evidence to support the offense for which defendant was charged and convicted, her conviction must be reversed. See Smith v. State, 89 N.M. 770, 558 P.2d 39 (1976). Because of our holding, we do not reach the other issue raised by defendant. The case is remanded with instructions to dismiss the charge.\nHENDLEY, C.J., and BIVINS, J., concur.", "type": "majority", "author": "MINZNER, Judge." } ], "attorneys": [ "Paul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Jacquelyn Robins, Chief Public Defender, Deborah A. Moll, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "723 P.2d 977\nSTATE of New Mexico, Plaintiff-Appellee, v. Gracie LEAL, Defendant-Appellant.\nNo. 7945.\nCourt of Appeals of New Mexico.\nJuly 29, 1986.\nPaul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJacquelyn Robins, Chief Public Defender, Deborah A. Moll, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0506-01", "first_page_order": 540, "last_page_order": 544 }